85 P. 533 | Kan. | 1906
The opinion of the court was delivered by
Richard N. Dorr was the head brakeman on a freight-train of the Missouri Pacific Railway Company. On his fourth trip over the line he fell from the steps of the locomotive and the wheels passed over and crushed his legs, making it necessary to amputate one of them above, and one below, the knee. He brought this action, alleging that the injury was due to the negligence of the railway company. In his testimony he related the circumstances of the unfortunate occurrence, saying substantially that he was riding on the engine, and as the station of Freeport was approached it was suggested to him that he make ready to get off, which he proceeded to do; that he grasped the handhold of the tender and reached for the handhold of the cab at the opposite side of the passageway, and, it being considerably lower than the other handhold, he leaned over, and just as he was about to catch it there was a jar of the engine which threw him off his balance; and that he then placed his foot on the lower step, which, being defective, tilted him off, his handhold broke loose, he fell to the ground, and rolled under the wheels, receiving the injuries
It is earnestly contended that the evidence does not prove the alleged negligence of the railway company, and it is also argued that it affirmatively shows that the injury was due to a want of care on the part of Dorr. Of this branch of the case it may be said that in some respects the testimony is not satisfactory, but it cannot be held that the finding that the company was negligent is without support^ nor would the court be justified in saying, as a matter' of law, that a recovery by Dorr was barred by his own negligence.
The railway company insists that it is eptitled to judgment on the findings, claiming that they in effect acquit it of the charge of negligence. It appears from the evidence and the findings that the liability of the railway company is based principally'upon its negligence in maintaining a defective step. To question No. 18, which was, “If you find that said step was out of repair, state in answer to this whether you find plaintiff would have beep, injured if said step had not been out of repair,” the jury answered, “No.” To hold the company for injuries to an employee because of defective machinery or appliances it is necessary
“This, however, is not enough to warrant a recovery against the defendant. There must be evidence fairly tending to show either that the defendant knew of the existence of the defect, or that, in the exercise of reasonable and ordinary care and diligence, the defect could have been1 discovered before the accident.” (Page 258.)
It has been found that Dorr would not have been hurt but for the defective step; that none of the employees of the railroad company knew of the defect; and that the step had been out of repair “for some time previous to the accident.” Was it out of repair long enough to charge the railroad company with constructive notice of the defect? How long a period is “some time” ? In the Century Dictionary the word “some”, is defined as “a certain indefinite or indeterminate quantity or part of; more or less. Often so used as to denote a small quantity or a deficiency.” The definition given in Webster’s International Dictionary is: “Consisting of a greater or less portion or sum; composed of a quantity or number which is not stated; used to express an indefinite quantity or number”; and, also, “not much; a little.”
In Lewis v. Jones, 17 Pa. St. 262, 55 Am. Dec. 550, a witness had testified about the purchase of “some hay” and “some grain” to feed stock, and the court was asked to base an instruction thereon, which was refused. In reviewing the case it was said that “ ‘some’ is a term too uncertain in its signification to sustain a verdict for any definite amount. It may mean a single ounce, or 10,000 tons — a single quart, or 20,000 bushels.” (Page 267.) In the same connection it was said that “nothing can more justly impair confidence in the administration of justice than the practice of encouraging, or even permitting, a jury to find facts of which there is no evidence.” (Page 267.) In Marq., Hought. & Ont. R. R. Co. v. Spear, 44 Mich. 169, 6 N. W. 203, 38 Am. Rep. 242, the court, in speaking of a promise to repair an engine “some time,” said that
“What is meant by a ‘considerable time,’ as related to the duration of a defect in railroad-tracks which will charge the company with knowledge? Suppose the jury had found in plain terms: ‘The hole did not exist for a considerable time.’ Who would have been the wiser as to whether it had .existed long enough to enable the company’s responsible agents to discover and repair it? Such a finding would have been too indefinite to aid in the determination of the disputed question.” (Page 245.)
“Some time” is equally as indefinite as a “considerable time,” and certainly it is not a longer time. It is evident that the jury were unable to find from the evidence what length of time the defect did exist, and
It is argued that the necessary facts are presumably found in the general verdict. The general verdict had no other or better support than the special finding. The question was specific; it was controlling. A definite answer was required, and it must be presumed that the jury made as full and as definite an answer as the testimony would, warrant. How, then, can it be said that the general verdict helps out the special finding? The general rule is that the general verdict yields to the special findings. The purpose, in part, of special findings is to explain and test the correctness of the general verdict. Applying this test, it appears that the jury must have misunderstood or misapplied the law as to constructive notice of the defective step. The court, in effect, instructed that the company was not chargeable with constructive notice, “unless the defects were of such a nature, or had existed for such a length of time, that they should have been discovered and remedied by the defendant.” The jury’s answer as to the length of time was no more than a conjecture. If they could not approximate the duration of the defect, they could not intelligently find that it had existed so long that it should have been discovered and remedied by the railroad company. As was said in Railroad Co. v.
On account of this finding the verdict is set aside, the judgment reversed, and the cause remanded for a new trial.